Heyes v Accident Rehabilitation and Compensation Insurance,Corporation

Decision NO 367 /99 IN THE DISTRICT COURT DCA No. 150/99 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN PAMELA HEYES Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Heard at : Auckland 10 September 1999 Date of Judgment: 13 December 1979 Counsel: Appellant in person D. Tui for respondent RESERVED JUDGMENT OF JUDGE G.V. HUBBLE The appellant was declined an independence allowance on review, and it is that decision which is appealed against. This is one of many such appeals (generally brought by claimants in person) because there appears to be a lack of understanding on the very considerable changes which have been made to the legislation since 1997. [I:JUDICIAL\Hubblej\Heyes.doc jab] 2. The short point is that the amended Regulation, which is Regulation 3 of the ARCIC (Independent Allowance Assessment and Rates of Payment) Regulations 1997 provides that for the purposes of s.54 and 54(a) of the ARCIC Act being the entitlement to an independence allowance sections) demand that assessment of whole person impairment must be carried out by an assessor (that is an approved assessor) who must use the Fourth Edition of the American Medical Association Guides to the evaluation of permanent impairment (AMA Guides). A "assessor" is specifically defined in the Regulations as a person who is appointed under Regulation 4. It follows that a claimant who may have been in receipt of such an allowance for many years can now be reassessed under the new Regulations. This is permitted by s.54(a)(4). A reassessment was made by Dr Faleto'ese. I accept that initially he applied the incorrect category under the AMA Guides, but subsequently corrected that, and as a result assessed the appellant has having a "whole person permanent impairment of 5%". Since Dr Faleto'ese is an approved assessor and no entitlement to an independence allowance arises where the impairment is only 5%, it follows that the Corporation's decision to cease the payment was in terms of the law apparently correct. Perhaps understandably Mrs Heyes was alarmed to find that whereas she had previously been assessed as having a disability of 100%, she is now assessed as 3. having an impairment of only 5%, and thus loses her entitlement to an independence allowance. As Judge Beattie said in the case of Smith (208/98):- "This appeal must be looked at in the narrow confines of the issue and when looked at in that context this appeal cannot succeed, and this was intimated to the appellant at the hearing. There is no evidence to suggest that the assessment was not carried out in accordance with the Act and Regulations or that the assessment so obtained was flawed. In those circumstances the decision of the Corporation to cease payment was correct and it had no statutory power to continue it once the reassessment determined that the whole of person impairment is less than 10% The same or similar comments have been made by Judge Middleton in Daniels (235/98) and in the cases of Monkhouse (48/99) and Kennedy (243/99). When this matter first came before me in September of this year, Mrs Heyes claimed that she had had an assessment made by Dr Weeks which demonstrated that Dr Faleto'ese's assessment was wrong and incorrectly carried out. accordingly allowed further time for the matter to be referred to Mr Roger Weeks, the Orthopaedic Surgeon, to examine the matter. It is now apparent as a result of further reports and submissions made, that Mr Weeks remains of the same opinion, namely, that Dr Faleto'ese is incorrect in the calculations he has made, and in his application of the Fourth Edition of the AMA Guides. I have also received comments and reports from Dr Ryan-Sheridan and Dr Morris, who are approved assessors. Mr Weeks is not an approved assessor under the Act. 4. I am satisfied having examined this evidence, that Mr Weeks' application of the Fourth Edition of the AMA Guide is inconsistent with and in direct conflict with the express requirements of the AMA Guide. It follows that the Review Authority decision is affirmed, and the appeal is disallowed. I do not overlook the further submission made by Mr Heyes in support of his wife that Dr Henley, an Endrochronologist and Specialist Physician, that:- "Mrs Heyes has developed hypertension over the last four years but her elevated and extremely high levels are caused by her chronic pain." He seeks to rely on this hearsay statement as evidence that the hypertension has itself been caused by the back injury and accordingly should be taken into account in assessing her right to an independence allowance. In my judgment this is not only unacceptable evidence, but would in any event not be relevant to the particular rules which need to be applied under the Fourth Edition of the AMA Guides. No orders for costs are made. (G.V. Hubble) District Court Judge